How Will the Indian Child Welfare Act Impact My Custody Case in Pennsylvania?

How Will the Indian Child Welfare Act Impact My Custody Case in Pennsylvania? By Lisa Marie Vari of Lisa Marie Vari & Associates, P.C. posted in Child Custody on Tuesday, March 22, 2016.

Recently, the Indian Child Welfare Act (ICWA) has hit the headlines as the community members respond to the Choctaw Nation victory in a California court that resulted in the removal of six-year-old Lexi from the home of her long-term foster parents in California. As always, there are two sides to every story, and the ICWA has had several other recent victories in court that have been largely ignored by the mainstream media. Courts in South Dakota, Oklahoma, Indiana, and several other states address the constitutionality of the state and federal ICWA laws.

All of this come in the wake of the Supreme Court’s 2013 Decision in Adoptive Couple v. Baby Girl in which the court stated that a non-custodial parent cannot invoke the ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent. In this case, the biological father, a member of the Cherokee nation, never had either legal or physical custody of Baby Girl and had previously relinquished his parental rights. Because the biological father gave up custody before birth, and because Baby Girl had never been in his legal or physical custody, the ICWA’s goal to prevent the breakup of Indian families did not apply according to the Court. Furthermore, the ICWA’s preference for placing an Indian child with family, other members of the tribe, or other Indian families did not apply in this case because no other parties beside the adoptive parents had come forward to adopt Baby Girl.

After Congress adopted the federal ICWA in 1978, most states, including Pennsylvania have adopted state laws that reflect the national law. In Pennsylvania, the ICWA complicates family court proceedings for the nearly 50,000 residents who claim ancestry to any one of several federally recognized Native American tribes. In many cases not only must Western Pennsylvania courts take into account the impact that the ICWA and its goals impact the “best-interest” analysis, but they also must strike a balance with the tribal leaders from the federally recognized tribes most of which have nation status and have their own governing bodies, court systems, and laws. In many cases, local courts on a county level will treat the courts from Native American tribes in a similar manner to those of neighboring states when it comes to jurisdiction, venue, and choice of law. However, because of the complex history between the tribes and the state courts, both often approach each other with suspicion and trepidation, which can further complicate the custody and adoption processes.

If you reside in Pittsburgh or the surrounding area and are looking for more information about a custody case involving a child with Native American heritage, contact our office and schedule a consultation today!

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